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1 

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d'impression  ou  d'illustration,  soit  par  la  second 
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premiere  page  qui  comporte  une  empreinte 
d'impression  ou  d'illustration  et  en  terminant  par 
la  dernidre  page  cii  comporte  une  telle 
empreinte. 

Un  des  symboles  suivants  apparaitra  sur  la 
dernidre  image  de  cheque  microfiche,  selon  le 
cas:  le  symbole  -♦'  signifie  "A  SUIVRE",  le 
symbole  V  signifie  "FIN". 

Les  cartes,  planches,  tableaux,  etc.,  peuvent  Atre 
film*s  d  des  taux  de  reduction  diffirents. 
Lorsque  le  document  est  trop  grand  pour  Atre 
reproduit  en  un  seul  clichA,  il  est  film*  A  partir 
de  Tangle  supArieur  gauche,  de  gauche  A  droite, 
et  de  haut  en  bas,  en  prenant  le  nombre 
d'images  nAcessaire.  Les  diagrammes  suivants 
illustrent  la  mAthode. 


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THE  GENESIS  OF  ROMAN  LAW 
IN  AMERICA 


BY 
WILLIAM   BENNETT   MUNRO 


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THE  GENESIS  OF  ROMAN  LAW  IN  AMERICA.       $79 


THE  GENESIS   OF   ROMAN   LAW   IN 
AMERICA. 

OOME  few  years  ago  the  Judicial  Committee  of  the  English 
O  Privy  Council,  in  a  case  which  came  before  it  on  appeal  from 
the  Court  of  King's  Bench  for  Quebec,'  encountered  some  difficulty 
in  the  interpretation  of  a  certain  clause  in  the  Civil  Code  of  the 
Province  of  Quebec*  The  clause  in  question  had,  it  appeared, 
been  borrowed  almost  literally  by  the  framers  of  the  Quebec  codi- 
fication from  the  Code  Napoleon  of  France.'  Resort  was  had, 
therefore,  to  this  latter  compilation,  whereupon  it  further  appeared 
that  the  provision  had  been  condensed  by  the  Napoleonic  jurists 
fro.n  a  passage  in  the  works  of  a  well-known  commentator  on  the 
laws  of  France  during  the  old  rfegime.*  As  the  code  provision 
needed  elucidation,  further  reference  was  accordingly  made  to  this 
commentary,  only  to  find  that  the  commentator  had  drawn  his 
rule  from  the  Roman  Digest*  The  judges  thereupon  went  back 
to  the  Justinian  compilation,  and  here  they  found  the  rule  of  law 
set  forth  in  such  clear  terms  as  to  enable  them  to  give  decision 
with  entire  confidence. 

This  is  an  interesting  illustration  of  the  continuity  of  legal  evolu- 
tion :  it  affords  testimony  to  what  Mr.  Bryce  has  emphasized  as 
the  vitality  of  the  Roman  jurisprudence,  and  of  its  contemporary 
application  to  immense  areas  which  never  knew  the  Roman  sway.« 
At  the  first  glance  this  instance,  and  many  others  like  unto  it, 
would  seem  capable  of  very  easy  explanation.  French  law  is  based 
on  Roman ;  the  French  colonized  Canada ;  they  introduced  their 
own  law;  the  English,  when  they  came,  retained  it;  hence  the 
Roman  law  very  naturally  forms  the  groundwork  of  Quebec  civil 
jurisprudence  in  the  twentieth  centui^    This  simple  explanation 

'  Kieffer  v.  Le  S^minaire  de  Quebec,  [1903]  A.  C.  85. 

«  Code  Civil  de  Quebec,  J  501.  The  clause  relates  to  the  liability  of  a  landlord  for 
the  tort  of  a  tenant  in  connection  with  the  impairment  of  a  riparian  right 

'  Code  Napolton,  {  640. 

«  R.  P.  Pothier,  Traits  de  soci<t<  (Paris,  1774),  »  «pp«-.  »3S-'39- 

»  Corpus  Juris  Civilis  (ed.  Krueger  &  Mommsen,  3  vols.,  Berlin,  i88»-i883),  vol.  1 
(DiMtsta),  Tit.  39,  S  3  (de  aqua.  6.  7). 

•  James  Bryce,  Studic*  in  History  and  Jurisprudence  (London,  1901),  7*. 


9sa 


sto 


HARVARD  LAW  REVIEW. 


is.  however,  entirely  at  v  ariancc  with  historical  accuracy.    It  does 
not  .quarc  with  the  facts  that  when  the  French  came  to  Quebec 
their  own  law  h.d  not  been  romani/.ed  or  that  the  first  body  of  law 
which  the  French  authorities  introduced  into  Canada  — the  Cus- 
tom of  I'ari— was  about  as  free  from  the  stamp  of  Roman  influ- 
ence as  was  the  common  law  of  England  at  the  contemporary  stage 
of  its  existence.     It  does  not  make  clear  to  us.  moreover,  how  it 
has  come  to  pass  that  the  Code  Napoleon,  a  compilation  prepared 
many  years  after  Canada  passed  out  of  French  hands,  should  have 
had  many  of  its  provisions  embodied  in  the  civi)  :ode  of  a  British 
colony.    The  truth  is  that  the  territory  which  now  forms  the  prov- 
ince  of  Quebec   really  began   its  '  fjal  history  undominated  by 
Roman   influence.     For  a  full  century  this  influence,  moreover, 
gained  but  little  headway.    When  the  colony  passed  into  I.nglish 
hands,  however,   the    romanizing  of  its   legal  system  very  soon 
began,  and  this  has  gone  on  more  or  less  steadily  under  English 
auspices.    For  the  dominance  of  Roman  juridical  ideas  in  the 
province  at  the  present  day  the  English  authorities  are  mainly 
responsible.    The^e   ideas  were  not  wholly  a  heritage  from  the 

French.  — - 

The  Custom  of  Paris,  which  must  form  the  starting-point  m  any 
outline  of  French-Canadian  legal  history  was.  at  the  outset,  only 
one  of  the  numerous  bodies  of  local  custom  which      gulated  pri- 
vate relations  in  that  portion  of  Franc  .  mainly  the  North,  which 
was  known  as  the  pays  coutiimiers  to  distinguish  it  from  that  other 
portion  of  the  kingdom,  mainly  the  South,  which  was  known  as  the 
pays  de  droit  cent  and  in  which  the  written  laws  of  Rome  applied. 
These  various  coutumes,  or  local  bodies  of  customary  law,  weie 
fundamentally  the  codified  customs  of  the  Teutonic  Franks;    m 
origin  and  in  development  they  were  as  thoroughly  Teutonic  and 
as  free  from  Roman  influenc  •  as  were  the  laws  of  Ine  or  Alfred  the 
Great "     Unofficial  codifications  of  the  Custom  of  Paris  were  made 
as  early  as  the  thirteenth  century;  but  the  first  authoritative  redac- 
tion was  not  accomplished  until  1510.'    The  compilation  prepared 
in  this  year  is  commonly  known  as  the  "  old  custom,"  and  it  was 

1  A  map  showing  the  two  regions  may  be  found  in  Jean  Brissaud's  Manuel  d'his- 

redu  droit  fran<;ais  (Paris,  1904),  152. 

»  This  almost  entire  freedom  of  the  cctume,  from  Roman  mfluence  is  discussed  .1 
Adh(=mar  Esmein's  chapter  on  "  La  coutume  et  le  droit  remain"  in  h  H>sto>re  du 
droit  fran9ais  (Paris,  1892).  673.  i,!  .  ••  ;„ 

»  11.  Kuche,  "  Essai  sur  Tancienne  coutume  de  Pans  aux  XIII  et  XIV  slides  m 
Nouvelle  Revue  Historique,  vol.  viu.  pp.  45-86 ;  vol.  U.  pp.  558-579- 


THE  GENESIS  OF  ROMAN  LAW  IN  AMERICA.       S3l 

with  this  as  a  basis  that  Dumoulin  wrote  his  famous  Latin  com- 
mentary. This  is  to  distinguish  it  from  the  "  new  custom  "  which 
embodied  the  results  of  a  revision  made  in  1 580  by  a  commission 
of  Parisian  l.'wytrs  under  the  presidency  of  the  distinguished  juris- 
consult Chris.ofle  dc  Thou.' 

In  this  revision  of  1580  the  general  arrangement  of  the  Custom 
of  I'aris  was  improve  i,  and  some  changes  were  made  in  the  text. 
The  code  now  appears  with  its  text  arranged  in  sixteen  titles  which 
rontain  altogether  three  hundred  and  jixty-two  articles  numbered 
consecutively.  The  form  is  satisfactory  and  the  various  rules  are 
set  forth  with  tolerable  clearness  and  brevity.  The  most  distin- 
guishing characteristic  of  this  code,  however,  is  its  thoroughly 
native  spirit ;  for  it  contains  very  little  distinct  trace  of  either 
Roman  or  Canon  law  influence.  One  might  indeed  go  so  far  as  to 
say  that  the  jurisprudence  of  Rome  had  up  to  this  time  influenced 
the  Custom  of  Paris  no  more  than  it  had  influenced  the  common 
law  of  England  at  the  contemporary  stage  of  its  development.  It 
ought  to  be  mentioned,  however,  that  the  Custom  of  Paris  did  not 
purport  to  be  a  complete  and  comprehensive  body  of  jurispru- 
dence ;  for  it  did  not  include  the  general  law  of  obligations  nor 
the  law  of  special  contracts.  All  this,  which  forms  an  important 
part  of  every  legal  system,  was  left  to  be  governed,  even  in  the 
territory  to  which  the  Custom  of  Paris  applied,  mainly  by  the  rules 
of  Roman  law.  This  latter  obtained  its  foothold  in  the  Viscounty 
and  Provostship  of  Paris,  not  through  the  Custom,  but  through  its 
application  to  a  sphere  of  private  relations  with  which  the  Custom 
did  not  undertake  to  deal.  It  is  highly  important  that  one  should 
remember  this,  for  it  does  not  coincide  with  the  commonly  accepted 
idea  that  Roman  law  first  made  its  way  to  the  New  World  through 
the  transplantation  of  the  Custom  of  Paris  to  New  France  and 
Louisiana.*  The  Custom  itself  Dwed  little  or  nothing  to  Roman 
law;  and  it  consequently  brought  little  or  nothing  of  it  across 
the  seas. 

In  1664,  when  all  the  territories  of  France  in  the  Western  Hem- 
isphere were  given  to  the  Company  of  the  West  Indies,  it  seemed 
advisable  that  a  definite  code  of  jurisprudence  for  these  territories 
should  be  prescribed,  and  from  the  many  customary  codes  available 
for  this  pur    yse  the  Custom  of  Paris  was  selected  and  decreed  into 


'  V.  A.  Poulenc,  La  coutume  de  Paris  (Pari*,  igoo). 

'  See,  for  example,  W.  W.  Howe's  article  on  "  Roman  and  Civil  Law  in  America" 
in  16  Harv.  L.  Rev.  343-358  (March,  1903). 


583 


HARVARD  LAW  REVIEW. 


force  »    The  French  colonists  in  America  up  to  this  time  had  been 
drawn  mainly  from  Normandy,  and  it  has  sometimes  been  sug- 
cested  that  the  Custom  of  Normandy  would  have  been  a  more 
appropriate  choice  as  a  colonial  code.     It  is  to  be  remembered, 
however,  that  the  Custom  of  I'aris  had  acquired  a  certain  primacy 
among  the  various  French  coutumes  at  this  time,  and  that  even 
before  this  date  Uumoulin  had  been  able  to  speak  of  .t  as  «/«/ 
omnium  hnjus  ngni  it  toUus  etiam  Belsicar  comHctudmum       At 
the  time  .^f  its  transplantation  across  the  Atlantic  it  bade  fair  to 
become  the  "common  law"  of  France,  and  its  selection  by  the 
French  authorities  was  therefore  entirely  logical,  although  .t  in- 
volved the  nnplication  to  sparsely  settled  and  undeveloped  colonies 
of  what  Nvas  intrinsically  a  metropolitan  code. 

IW  the  decree  of  1664  't  was  provided  that  the  courts  of  the 
French  colonies  in  America  and  the  West  Indies  should  govern 
themselves  by  the  Custom  of  Paris  and  "by  the  laws  and  ordi- 
nances of  the  realm."    The  ordinances  of  the  French  crown  prior 
to  this  date  had  been  somewhat  numerous,  but  few  of  then,  had 
made  any  important  changes  in  the  law  of  private  relations.    The 
acre  of  Louis  XIV  (1662-.715)  was  prolific  in  royal  legislation, 
however,  and  a  succession  of  elaborate  decrees,  commonly  known 
as  the  mxndcs  ordonnances,  revised  and  codified  several   impor- 
tant  branches  of  law  and  civil  procedure.'    This  legislafon  in  the 
main  supplemented  the  Custom  of  Paris,  and  covered  fields  of  law 
with  which  the  Custom  did  not  undertake  to  deal;  but  to  some 
extent  the  great  ordinances  varied  and  altered  in  effect  the  pro- 
visions of  this  code.     It  therefore  becomes  important  to  know 
whether  these  ordinances  extended  to  the  colonies,  or  whether 
their  provisions  applied  to  France  alone.'' 

In  France  it  was  necessary,  before  an  ordinance  of  this  sort 
should  become  valid,  that  it  should  be  registered  by  vSe  Parlia- 
ment of  Paris.    This  body,  as  every  one  knows,  had  technically  tne 

-IT;;;;;;;;^,^  jug,,  etabU,  en  wus  lesdit,  Hcux  tenus  de  juger  suivant  les  loix  et 
ordon.^".,  Ju  royaume,  et  le,  officier,  de  suivre  e.  se  conformer  i  U  cou.ume  de  U 
r  v6t"  t  v,co.n./de  Pam,  suivan.  laque.le  les  habi.an,  pourron,  io"'"'^*"  "J"  ^'^^ 
[•on  puisse  iniroduire  aucune  cou.ame  pour  ivi.er  la  d.ver.U*."  ^"bl.ssement  de  a 
CoTagnic  <'"  I"''"  C)cciden.ales  (Ar..  xxxiii).  i"  I-amberf.  Recued  genera,  de. 
ancienne,  lois  fran.aise.  (30  vols.,  Pari,.  .8..-.833).  -'•  ""'•  PP,38fl• 
^  Paul  Viollet,  Histoire  du  droit  civil  fran9ais  (Pans,  iSgj).  p.  208- 

.  Amone  these  were  the  "  Ordonnance  civile  touchant  la  reformation  de  la  justice 

la  marine--' August,  .68.).  in  lUJ.  vol.  xix.  pp.  =8.  «. ,  and  the  "  Ordonnance  da  com- 
merce  "  (March,  .673),  in  Ibid.,  vol.  xix.  pp.  9a  ff. 


THE  GENESIS  OF  ROMAN  LAW  IN  AMERICA.       583 


right  to  refuse  registration,  and  tb'i  to  deny  validity  to  royal  de- 
crees ;  but  the  king  might,  and  ab  time  went  on  did  actually,  over- 
ride its  veto  by  the  use  of  the  prerogative  commonly  known  as  the 
///  le  juuict.  Now  the  Sovereign  Councils,  which  the  French 
government  established  in  its  American  colonies,  were  modelled 
roughly  after  the  frame  of  the  Parliament  of  Paris,  and  in  the  edicts 
creating  them  were  specifically  instructed  to  follow  the  procedure 
of  this  body.'  One  of  their  chief  func''  ns,  indeed,  was  thit  of 
receiving  royal  ordinances  sent  fron.  .a nee  and  of  registering 
these  in  their  council  records.  Mip'  these  colonial  councils, 
then,  like  their  prototype  in  France,  refuse  to  register  a  royal 
decree;  and  might  a  royal  ordinance  become  operative  in  the 
colonics  save  after  such  registration  ?  The  answer  to  the  former 
of  these  questions  is  simple  enough.  Whatever  the  legal  rights 
of  the  council^  In  Canada  and  Louisiana,  the  fact  was  that  the 
councillors  in  both  colonies  were  appointed  directly  by  the  king ; 
they  held  office  only  during  the  royal  pleasure;  and  they  might 
be  removed  by  the  crown  at  will.  Unlike  tl  ^  members  of  the 
Parliament  of  Paris,  they  did  not  secure  their  posts  by  purchase  or 
by  inheritance,  and  they  had  hence  no  security  of  tenure.  At  the 
first  show  of  recalcitrancy  Louis  XIV  would  certainly  have  removed 
the  colonial  councillors  from  office.  They  themselves  knew  this 
very  well,  and  there  is  consequently  no  evidence  that  they  ever 
showed  any  disposition  to  refuse  registration  to  an/  royal  mandate 
sent  to  them. 

The  other  question,  namely,  whether  an  c  anre  which  had 
been  registered  by  the  Parliament  of  Pnris,  bu  >t  sent  out  to  be 
registered  by  the  councils  of  the  Franc  /ATTiirican  colonies,  could 
be  held  to  apply  in  these  colonies,  i;  ,  ne  which  is  by  no  means 
so  easy  to  answer.  As  a  ; -atter  of  t  t  the  great  ordinances  of 
Louis  XIV  were  not  regisi  .:i :  in  any  of  the  colonies.  Still  their 
provisions  were  commonly  .ijcepted  by  the  colonial  courts,  and 
especially  by  the  courts  of  Canada  during  the  French  regime,  and 
some  of  them  acquired  the  full  force  of  law.  There  was  a  good 
deal  of  Roman  law  in  these  great  ordinances,  and  it  was  in  this 
way  that  some  branches  of  Romin  jurisprudence  made  their  way 
to  America  and  gained  a  footing  there.  The  colonial  courts  fol- 
lowed the  provisions  of  the  great  ordinances  in  many  matters 

'  S«e  the  "  Edit  de  creation  du  conseil  souverain  de  la  Nouvelle-France  "  (April, 
1663),  in  Edits  et  ordonnancet  du  roi  conccmant  le  Canada  (3  vote.,  Quebec,  1854), 
*ol.  i.  pp.  37-39. 


^1 

If 


S8+ 


HARVARD  LAiy  REVIEW. 


because  they  found  it  convenient  to  do  so ;  it  is  now  well  settled 
that,  since  the  ordinances  were  not  registered  in  the  colonies,  they 
were  in  no  way  binding  upon  the  colonial  authorities.* 

But  the  royal  ordinances  were  not  the  only  enactments  by  which 
the  Custom  of  Paris  or  "  common  law  "  of  the  colonies  was  sup- 
plemented or  changed.  The  Sovereign  Councils  of  the  colonies 
might  themselves  issue  decrees,  and  the  ordinances  issued  by  the 
council  at  Quebec  fill  several  ponderous  volumes.*  Likewise  the 
Intendant  in  New  France  and  the  Sub-delegate  in  Louisiana  issued 
their  multitude  of  riglcments  covering  all  sorts  of  matters  from  the 
most  important  to  the  most  trivial,  as  the  wru.r  has  elsewhere 
shown.*  Indeed,  if  there  is  any  one  feature  which  impresses  the 
student  of  French  administration  in  the  New  World,  it  is  the  pro- 
digious official  activity  there  displayed.  Still  this  bewildering  mass 
of  colonial  legislation  did  not  greatly  modify  the  general  principles 
of  colonial  law  as  set  forth  in  the  Custom  of  Paris  and  in  those  of 
the  royal  ordinances  which  had  been  registered,  for  the  obvious 
reason  that  the  ordinance  power  of  the  colonial  authorities  was 
limited  to  the  elucidation  and  interpretation  of  the  law,  and  did  not 
extend  to  the  radical  alteration  of  it.  It  is  true,  howi  r,  that 
they  did  not  limit  themselves  strictly  in  this  respect,  but  allowed 
themselves  considerable  latitude,  for,  as  one  of  the  intendants 
expressed  it  in  a  despatch  to  the  kin^,  there  would  soon  be  more 
lawsuits  in  the  colony  than  persons,  if  the  authorities  did  not  hold 
themselves  free  to  order  things  in  a  fashion  which  often  involved 
wide  departures  from  the  letter  of  the  law.* 

When  the  French  withdrew  from  their  extensive  territories  in 
1 760,  therefore,  they  left  implanted  in  ithese  a  legal  system  which 
was  fundamentally  Teutonic  in  character,  and  which,  except  so  far 
as  the  law  of  special  contracts  was  concerned,  bore  very  little 
important  trace  of  Roman  influence.  The  jurisprudence  of  the 
French  colonies  in  America  had  been  much  less  romanized  than  the 
jurisprudence  of  the  motherland  at  this  time ;  for  many  branches 
of  the   home    jurisprudence    had   been   thoroughly   impregnated 

1  F.  P.  Walton,  The  Scope  and  Interpretation  of  the  Civil  Code  of  Lower  Canada 
(Montreal,  1907),  especially  the  cases  cited  on  p.  4,  note  3. 

■i  Jugements  et  deliberation*  du  conseil  souverain  de  la  Nouvelle-France  (6  vols., 
Quebec,  1SS5-1891). 

8  "  The  Dftice  of  Intendant  in  New  France "  in  American  Historical  Review, 
October,  1906,  pp.  15-3S. 

*  Kaudot  to  Pontchartrain  (November  10,  1707),  in  Canadian  Archives,  Series  F., 
vol.  xxvi.  pp.  7  ff. 


THE  GENESIS  OF  ROMAN  LAW  IN  AMERICA. 


58s 


with  Roman  influences  through  the  issue  of  the  great  ordinances 
which,  as  has  been  stated,  were  not  registered  in  the  American 
colonies  of  France,  and  were  consequently  not  part  of  the  legal 
systems  there.  Somewhat  strange  and  paradoxical  as  it  may  ap- 
pear, a  large  part  of  the  Roman  influence  which  now  appears  in 
the  civil  jurisprudence  of  Quebec  and  Louisiana  made  its  way  to 
these  jurisdictions,  not  during  the  period  of  French  dominion,  but 
since  the  expulsion  of  France  from  the  New  World.  This  may  be 
best  illustrated,  perhaps,  by  confining  attention  to  the  former  of 
these  two  jurisdictions  alone. 

It  is  a  recognized  principle  of  English  public  law  that  the  con- 
quest of  alien  territory  does  not,  ipso  facto,  involve  the  <"-  nsion 
thereto  of  the  English  law  of  property  and  civil  rights.*  On  the 
contrary,  the  law  of  the  conquered  territory  remains  in  full  force 
and  effect  until  such  time  as  the  new  suzerain  may  alter  or  abrogate 
it  by  explicit  enactment.  The  conquest  of  Canada,  therefore,  left 
the  colony  with  its  old  law  for  the  time  being.  But  this  ancient 
jurisprudence  was  soon  set  aside,  for  within  three  years  after  the 
conquest,  on  October  7,  1763,  a  royal  proclamation  provided  for 
the  establishi.  it  of  new  courts  in  the  colony  and  directed  specifi- 
cally that  these  tribunals  should  "  hear  all  causes,  both  criminal 
and  civil,  as  near  as  may  be  agreeable  to  the  law  and  equity  of 
England."* 

The  intent  of  this  proclamation  was  without  doubt  to  abrogate 
entirely  the  Custom  of  Paris  and  the  other  factors  in  the  old  law 
system  of  the  province,  replacing  these  by  the  common  law  and 
equity  jurisprudence  of  England.  But  it  is  quite  an  open  question 
whether  the  king  of  England,  by  the  mere  exercise  of  his  royal 
prerogative  and  through  the  elementary  agency  of  a  royal  proc- 
lamation, had  power  to  make  this  sweeping  change.  There  are 
those  who  believe  that  a  change  of  this  nature  could  be  made  only 
b_  Act  of  Parliament.  The  question  is  one  which  has  been  dis- 
cussed at  considerable  length  by  the  legal  savants  of  French 
Canada,  and  until  very  recently  the  weight  of  opinion  has  inclined 
to  the  view  that  the  king  did  not  possess  the  right  to  abrogate  the 
old  law  by  proclamation.'    One  of  the  higher  courts  of  Quebec, 

*   The  leading  case  on  this  point  is  Campbell  v.  Hall,  I  Cowp.  204. 

>  Canadian  Archives,  Series  Q.,  Vol.  62A,  Pt.  I,  pp.  114  ff.  An  exact  copy  of  the 
proclamation  is  printed  in  "  Documents  relating  to  the  Constitutional  History  o£ 
Canada"  (ed.  A.  Shortt  and  A.  G.  Doughty,  Ottawa,  1907),  pp.  119-123. 

«  Rudolphe  Lemieuz,  Les  origines  da  droit  franco<aDadien  (Montreal,  1901), 
pp.  363  ff. 


586 


HARVARD  LAW  REVIEW. 


mcreover,  assumed  this  attitude  in  an  important  decision ; '  and  in 
another  significant  case  the  chief  justice  argued  convincingly  in  the 
same  direction,  although  the  determination  of  this  point  was  not 
essential  to  the  decision  of  the  court*  But  the  most  recent  writer 
on  the  subject  has  concluded,  after  a  discriminating  review  of  the 
whole  matter,  that  the  king  did  have  the  power  to  abrogate  the  old 
law  by  proclamation,  and  that  tht  proclamation  of  1763  did  legally 
abrogate  the  French  jurisprudence  in  favor  of  the  laws  of  England." 
I  am  convinced  that  this  conclusion  is  entirely  sound.  The  question 
is,  however,  one  of  academic  rather  than  of  practical  interest,  for 
the  terms  of  the  proclamation,  in  their  original  form,  were  never 
put  into  general  operation. 

Apart  altogether  from  the  question  of  legality  there  were  im- 
portant practical  difficulties  in  the  way  of  the  change.  For  one 
thing  it  was  immediately  found  that  the  new  English  law  of  real 
property  could  not  be  applied  by  the  courts  to  the  settlement  of 
disputes  concerning  proprietary  rights,  for  the  obvious  reason  that 
this  law  dealt  mainly  with  the  principles  and  incidents  of  socage 
tenure,  whereas  the  land  tenures  of  Canada  were  at  this  time  almost 
wholly  feudal,  and  it  was  the  intention  of  tli^  English  authorities, . 
in  compliance  with  pledges  given  at  the  time  of  the  conquest,  to 
leave  the  land  tenure  system  untouched.*  As  the  new  law  was  so 
clearly  unadapted  to  the  subject  matters  with  which  it  had  to  deal, 
the  governor  of  the  colony  instructed  the  courts  to  apply  the  old 
law  to  disputes  concerning  land  until  the  home  government  could 
be  consulted  on  the  point.  In  1766  the  English  authorities  gave 
instructions  that  in  "  all  suits  and  actions  relative  to  the  titles  of 
land,  and  the  descent,  alienation,  settlement,  and  encumbrance  of 
real  property  the  colonial  courts  do  govern  themselves  in  their  pro- 
ceedings, judgments,  and  decisions  by  the  local  customs  and  usages 
which  have  hitherto  governed  and  prevailed  within  the  province."  * 
The  common  law  of  England  here  received,  so  far  as  the  new  pos- 
sessions in  Ameiica  were  concerned,  its  first  important  set-back. 

'  Stuart  V.  Bowman,  2  L.  C.  Rep.  369  ( 1851 ). 

»  The  judgment  of  Sir  Louis  H.  Lafontaine  in  Wilcox  v.  Wilcox,  8  L.  C.  Rep.  34 

(«857)- 

»  F.  P.  Walton,  The  Scope  and  Interpretation  of  the  Civil  Code  of  Lower  Canada 

(Montreal,  1907),  pp.  12-19. 

*  This  whole  question  of  the  relation  of  feudal  tenures  to  the  new  legal  system  is 
discussed  at  length  in  the  writer's  "  Seigniorial  System  in  Canada"  (New  York,  1907), 
Chap.  XI. 

»  Instructions  to  the  Hon.  James  Murray  (June  24,  1766)  in  Public  Record  OflSce, 
London,  Board  of  Trade,  Canada,  vol.  xv. 


THE  GENESIS  OF  ROMAN  LAW  IN  AMERICA.       587 

It  was  soon  to  receive,  however,  a  much  more  severe  assault,  for 
the  courts  promptly  found  difficulty  in  administering  the  two  sys- 
tems of  law  side  by  side.  Considerable  chaos  resulted  fron*  the 
fact  that  the  royal  decrees,  the  colonial  ordinances,  and  the  decis- 
ions of  the  courts  during  the  French  regime  were  yet  unpublished: 
they  were  still  in  manuscript,  in  a  handwriting  difficult  to  follow, 
unarranged,  unindexed,  and  to  some  extent  scattered.  It  was  only 
natural,  therefore,  that  the  English  judges  should  have,  in  most 
cases,  given  up  any  serious  attempt  to  ascertain  che  old  law,  and 
should  have  resorted,  for  the  determination  of  matters  which  came 
before  them,  either  to  the  rules  of  English  law  relating  to  tenure 
in  copyhold  or  to  the  rules  of  Roman  law  relating  to  tenure  en  fiff. 
Recognizing  the  difficulties  which  confronted  the  courts  in  comply- 
ing with  the  letter  of  their  instructions.  Governor  Carleton  appointed 
a  "  Select  Committee  of  Canadian  Gentlemen  well  skilled  in  the 
Laws  of  France  and  of  that  Province,"  to  make  a  digest  of  the 
whole  body  of  provincial  jurisprudence  as  it  had  existed  in  the  col- 
ony prior  to  the  coming  of  the  English.  This  codification  was 
accomplished  in  1773.'  It  is  worth  noting,  however,  that  the  com- 
mittee allowed  itself  considerable  leeway  in  its  work ;  for  while  its 
task  was  specifically  to  make  a  digest  of  the  laws  which  had  actually 
governed  private  relations  in  the  colony  before  1760  it  sought 
guidance  for  its  arrangement  of  the  abstracts,  and  to  some  extent 
guidance  in  interpretation,  in  the  works  of  the  standard  French 
commentators  of  the  period.  These,  as  is  well  known,  had  written 
under  the  influence  of  a  more  or  less  thorough  training  in  the  Ro- 
man law,  and  they  transmitted  some  of  this  influence  to  the  Cana- 
dian codihers.  Some  Roman  law  therefore  worked  its  way  into 
Quebec  through  the  decisions  of  the  courts  in  the  period  1764- 
1 774  and  through  the  work  of  those  who  codified  the  ancient  laws 
during  the  latter  years  of  this  decade. 

In  1774  the  provisions  of  the  Quebec  Act  restored  the  old  French 


>  It  was  pnblUhed  in  four  parts  at  London  during  the  years  1772-1773.  The  exact 
titles  of  the  four  parts  are :  i.  An  Abstract  of  those  Parts  of  the  Custom  of  the  Vis- 
county and  Provostship  of  Paris  which  were  received  and  practiced  in  the  Province  of 
Quebec  in  the  time  of  the  French  Government.  2.  The  Sequel  to  the  Abstract  .  .  . 
containing  the  Thirteen  latter  Titles  of  the  said  Abstract.  3.  An  Abstract  of  the 
Criminal  Laws  that  were  in  force  in  the  Province  of  Quebec  in  the  time  of  the  French 
Government.  4.  An  Abstract  of  the  Several  Royal  Edicts,  and  Declarations,  and 
Provincial  Regluations  and  Ordinances  that  were  in  force  in  the  Province  of  Quebec 
in  the  time  of  the  French  Government,  and  of  the  Commissions  of  the  several  Gov- 
ernors-General and  Intendants  of  the  said  Province  (London,  1772-1773). 


588 


HARVARD  LAIV  RE  VIE  IV. 


law  in  "  all  cases  relating  to  property  and  civil  rights,"  thus  ousting 
from  the  province  all  that  was  left  of  English  law  in  =ts  application 
to  other  than  criminal  causes.'  This  was  a  very  welcome  conces- 
sion to  tl  :  French-Canadians,  and  doubtless  had  some  influence 
in  keeping  them  from  casting  in  their  lot  with  the  revolting  Amer- 
ican colonists  to  the  southward.  By  these  latter,  as  is  well  known, 
the  change  was  regarded  as  a  species  of  treason  to  Anglo-Saxon 
institutions,  and  in  the  Declaration  of  Independence  George  III 
was  rebuked,  inUt  alia,  "  for  abolishing  the  free  system  of  English 
law  in  a  neighboring  province."  At  any  rate,  the  Quebec  Act  re- 
stored in  its  entirety  the  civil  jurisprudence  of  the  old  regime,  and 
it  has  remained  in  full  force  throughout  the  Province  of  Quebec 
down  to  the  present  day.  The  English  criminal  law  has,  however, 
existed  side  by  side  with  it  from  the  outset. 

During  the  half  century  following  the  restoration  of  the  old  law 
system  many  changes  were  made  in  it ;  for  the  legislative  authori- 
ties of  the  province  had  been  given  power  to  change  it  by  en- 
actment whenever  changes  might  seem  desirable.  In  1785,  for 
example,  the  p"- wincial  authorities  made  provision  that  in  all  com- 
mercial causes  the  English  rules  of  evidence  applicable  to  such 
proceedings  were  to  b  followed.  These  English  rules  of  evidence 
in  commercial  causes  were  founded,  however,  on  the  rules  of  the 
old  law  merchant,  and  as  they  were  in  their  origin  rather  interna- 
tional than  national  they  did  not  differ  in  essentials  from  those 
which  were  prescribed  in  the  Ordonnance  de  la  Marine  of  1681,* 
one  of  the  Grand  Ordinances  which  had  never  been  registered  in 
the  colony.  Other  statutes  made  important  changes  in  various 
branches  of  the  law,  and  the  abolition  of  the  seigniorial  system  of 
1,-ind  tenure  in  1854  made  a  very  radical  change,  not  in  the  law  it- 
self but  in  one  of  the  chief  subjects  with  which  the  civil  law  had  to 
deal.  During  this  period,  moreover,  a  considerable  development 
took  place  through  the  agency  of  judicial  decisions.  The  judges 
of  the  province  turned  constantly  for  enlightenment  to  the  commen- 
tators of  Old  France,  to  the  decisions  of  French  courts,  and,  above 
all,  to  the  provisions  of  the  Code  Napoleon  after  that  compilation 
had  been  prepared.  In  many  respec.s  the  provincial  jurisprudence, 
therefore,  while  professing  to  be  a  perpetuation  of  the  old  legal  sys- 
tem, was  steadily  departing  from  this  latter.    Through  the  channels 


»  14  Geo.  in.  c.  83. 

»  This  ordinance  may  be  found  in  Isambert's  Recueil  g&^ral,  vol.  xix.  pp.  282  ff. 


THE  GENESIS  OF  ROMAN  LAW  IN  AMERICA.       589 

which  have  just  been  mentioned  the  influence  of  Roman   Law 
exerted  itself  strongly  and  with  enduring  eflfect. 

In  1857  it  was  deemed  advisable  that  the  civi'  law  system  of  the 
province  should  be  revised  and  recodified,  for  there  had  been  no 
important  revision  since  1773.  The  work  was  committed  to  a  com- 
mission of  French-Canadian  jurists  by  whom  it  was  accomplished 
with  high  credit  When  the  task  was  completed,  the  compilation 
was  enacted  as  the  Code  Civil  de  Quebec.  If  there  was  any  one 
feature  which  marked  the  labors  of  this  cc  Timission.  it  was  the  un- 
remitting attention  which  they  gave  to  the  Code  Napoleon  and  the 
large  extent  to  which  they  drew  from  this  source.  In  its  arrange- 
ment the  Code  Civil  de  Quebec  follows  the  Code  Napoleon  almost 
slavishly.  In  matter  the  dependence  is  extensive  and  obvious. 
Mary  articles  are  reproduced  \  crbatim ;  many  others  show  only 
mere  verbal  transposition.  With  the  exception  of  a  single  book,» 
indeed,  the  Code  Civil  de  Quebec  may  be  much  more  properly 
looked  upon  as  a  recension  of  the  Code  Ixapoleon  than  as  a  revis- 
ion and  recodification  of  the  French  civil  law  as  it  had  existed  in 
the  colony  before  the  English  conquest. 

Now  those  who  are  familiar  with  the  history  of  the  legal  system 
of  modern  France  do  not  need  to  be  reminded  of  the  mighty  debt 
which  the  Code  Napoleon  owes  to  the  Roman  Law.  This  obliga- 
tion, direct  and  indirect,  is  made  perfectly  clear  in  the  collection 
of  sources  which  the  Bonapartist  compilers  used  in  the  consumma- 
tion of  their  monumental  task.*  The  legal  system  of  France  had 
b'-en  steadily  romanized  during  the  century  preceding  the  Revolu- 
tion, and  the  compilers  of  the  Code  Napol<^on  completed  the  pro- 
cess. It  may  not  be  amiss  therefore  to  point  out  that  the  Code 
Civil  de  Quebec,  in  so  far  as  it  is  based  upon  the  Napoleonic  com- 
pilation, shares  equally  in  indebtedness  to  the  jurisprudence  of 
Justinian.  It  is  probably  well  within  the  bounds  of  *ruth  to  sug- 
gest that  more  Roman  law  found  its  way  into  the  contempora.y 
legal  system  of  French  Canada  by  way  of  the  Code  Napoleon  than 
through  any  other  channel,  or,  possibly,  through  all  other  channels 
combined. 

The  dominance  of  Roman  juridical  ideas  in  this  province  is  not. 
therefore,  a  heritage  from  the  days  of  French  possession.  It  is  not 
because  the  French  established  there  the  Custom  of  Paris ;    but 

»  Book  iv^ 

»  These  sources  are  brcught  together  in  Fenet's  Recueil  complet  des  travaux  pr«- 
paratoires  du  Code  CivU  (15  vols,  Parii,  1827-1829). 


590 


HARVARD  LAW  REVIEW. 


because  under  English  rule  there  have  been  wide  departures  from 

this  original  code.    When  the  French  left  Canada  in  1763,  they  left 

behind  them  a  system  of  jurisprudence  which  probably  owed  mor'i 

to  Teutonic  than  to  Roman  sources.    It  is  of  course  not  unnatural 

that,  being  French  in  origin,  the  law  system  of  the  province  should 

have  continued  French  in  development  despite  the  passing  of  the 

colony  into  the  hands  of  a  new  suzerain  and  notwithstanding  the 

startling  break  in  the  continuity  of  French  legal  evolution  which 

marked  the  Revolutionary  and  Napoleonic  periods.    But  it  was  not 

essential  that  the  civil  j   risprudence  of  Quebec  should  have  taken 

this  course.     In  fact  it  was  the  intention  of  the  English  authorities 

at  the  outset  to  turn  it  into  quite  another  channel.     From  this 

policy  they  eventually  refrained,  however,  and  by  so  doing  gave 

recognition  to  the  principle  that,  in  the  evolution  of  a  legal  system, 

ethnic  factors  are  apt  to  prove  more  potent  than  the  pressure  of 

political  control 

William  Bennett  Munro. 


■Hi 


